Christian A. Williams v. Boston, City of - Law Department (SPR 20201115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 21, 2020 SPR20/1115 Shawn Williams, Esq. Records Access Officer City of Boston One City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Christian Williams of the Committee for Public Counsel Services appealing the response of the City of Boston (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Williams requested “use of force report or use of defensive tactics reports filed regarding any and all events of Friday, May 29, 2020.” The City provided Attorney Williams with a response indicating that it is withholding the responsive records pursuant to Exemption (f). Unsatisfied with the City’s response, Attorney Williams petitioned this office and this appeal, SPR 20/1115, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The City’s Response In its response, the City states “[t]he Department is denying the release of this report for the following reason… the information contained in a pending investigation is not subject to One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shawn Williams, Esq. SPR20/1115 Page 2 July 21, 2020 disclosure under the Investigatory Exemption. See MGL c. 4 § 7(26)(f).” The City explains “[a] purpose of Exemption (f) is to encourage members of the public to cooperate with investigative officials. Disclosure of the witness statements in this instance would be contrary to the stated goal of Exemption (f). Accordingly, the witness statements must be withheld entirely pursuant to Exemption (f) as it is likely that the identity of any witness is known by you.” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Based on the City’s response, it is unclear what records are within its possession. See G. L. c. 66, § 10(a)(ii), (b)(ii); see also G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Further, while the City asserts the responsive records pertain to a pending investigation, it does not explain the subject of the investigation, nor does it describe how the requested records are part of the investigation. Additionally, although the City claims the records contain “witness statements” it is unclear how producing these records, or segregable portions thereof, “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find the City has not met its

Shawn Williams, Esq. SPR20/1115 Page 3 July 21, 2020 burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. Order Accordingly, the City is ordered to provide Attorney Williams with a response to the request in a manner consistent with this order, the Public Records Law and its Regulations within as soon as practicable. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian Williams, Esq.